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Delhi District Court

Ram Parkash @ Parkash Chand vs Suresh Kumar on 7 February, 2020

             IN THE COURT OF SH. MANISH JAIN: CIVIL JUDGE
                  NORTH WEST: ROHINI COURTS : DELHI

CS No. 59024/16

Ram Parkash @ Parkash Chand
S/o Late Sh. Rati Ram,
R/o H. No. 98, Harijan Basti,
Sultan Pur Majra, Delhi­41.                                                   ..... Plaintiff


                                             Vs
1. Suresh Kumar
S/o Sh. Ram Parkash @ Parkash Chand,

2. Suneta
W/o Suresh Kumar

Both resident of:
H. No. 98 (Ground Floor Back Side),
Harijan Basti, Sultan Pur Majra, Delhi­41.                               ...... Defendants


           SUIT FOR MANDATORY & PERMANENT INJUNCTION

                       Date of institution            : 27.10.2014
                       Date of decision               : 07.02.2020
                       Final Order                    : Decreed


JUDGMENT

BRIEF FACTS

1. Briefly stated, plaintiff had been allotted a plot by the Gram Sabha, Sultapur Mazra, Delhi for residential purpose under a govt. scheme and he constructed a house therein bearing no. 98, Harijan Basti, Sultanpur Majra, Delhi­41 (herein after called "suit property") and has been in continuous possession of the same till date. Defendant no. 1 is the elder son and defendant no. 2 is the daughter in law of the plaintiff and out of love & affection, plaintiff permitted them to reside in his house as a licensee. It is alleged that due to day to day nuisance created by defendants, plaintiff CS No. 59024/16 Page 1 of 6 had given an old house situated in the nearby locality to the defendants as their share and defendants started living separately. After some time, at request of defendant no. 1 that he wanted to construct his house, plaintiff had given one room on the back side of his house (suit property) to the defendants till the completion of construction work in their own house. It is further alleged that after expiry of one year when the plaintiff asked defendants to vacate the suit property, defendants became dishonest and refused to vacate the suit property and filed a civil suit against the plaintiff seeking permanent injunction over the suit property. In that civil suit, the application u/o XXXIX rule 1 & 2 CPC filed by the defendants (plaintiff therein) was allowed. It is further stated that defendants also sold out the house which was given to them by the plaintiff. Aggrieved, plaintiff has filed the present suit seeking a decree of mandatory injunction thereby directing the defendants to vacate the suit property and a decree of permanent injunction thereby restraining the defendants from creating any third party interest over the suit property.

2. On being served, the defendants filed written statement denying the contents of the plaint and stating that the plot in question was allotted to the whole family and not to the plaintiff in his individual capacity and the allotment letter was issued in the name of the plaintiff being the head of the family. It is further stated that the present suit is a counter blast to the suit filed by the defendant against plaintiff.

Replication was filed by the plaintiff reiterating the contents of the plaint and denying the contents of written statement.

ISSUES

3. Upon completion of pleadings, following issues were framed in the matter on 05.10.2015.

                  (i)     Whether the plaintiff is entitled to a decree of
                  permanent      injunction     thereby     restraining    the

defendants, their agents, assignees to restore the vacant CS No. 59024/16 Page 2 of 6 and peaceful possession of the suit property / plot i.e. one room situated in back side of property bearing H. No. 98, Harijan Basti, Sultan Pur Majra, Delhi­41, as prayed for? (OPP)

(ii) Whether the plaintiff is entitled to a decree of permanent injunction thereby restraining the defendants, their agents, assignees from alienating, transferring, parting with possession of the suit property i.e. H. No. 98, Harijan Basti, Sultan Pur Majra, Delhi­ 41, as prayed for? (OPP)(ii)

(iii) Relief.

TRIAL

4. Plaintiff in his evidence examined himself as PW1 vide affidavit Ex. PW1/A wherein he re­iterated the contents of the plaint and relied upon copy of allotment certificate Ex.PW1/1 and site plan Ex.PW1/2.

He was duly cross examined on behalf of the defendants.

No other PW was examined and the PE stood on 26.10.2017.

5. In defence, defendant no. 1 examined himself as DW1 vide affidavit Ex. DW1/A wherein he re­iterated the contents of the WS.

He was duly cross examined on behalf of the plaintiff.

No other DW was examined and the DE was closed on 26.11.2018.

6. Arguments heard. Record perused.

FINDINGS

7. Both the issues shall be decided jointly.

The burden of proof of proving both the issues u/o 101 Indian Evidence Act 1872 is upon the plaintiff. The plaintiff claims himself to be the owner of the suit property for which he relies upon Ex.PW1/1 i.e. the allotment certificate issued by Gaon Sabha, Sultan Pur (Mazra), Delhi on 07.02.1975. The defendants in their WS and in their arguments have not denied the issuance of the said allotment certificate in the name of the plaintiff. However, two fold objections have been taken by the defendant. Firstly, it is alleged by the defendant that though the allotment certificate has been issued in the name of the plaintiff, the allotment was made for the entire family as one unit and since the plaintiff was the elder most person of the family, the allotment certificate was issued in the name of the plaintiff. Secondly, it has been alleged that the allotment was of a plot and the construction of the said plot was carried out by the plaintiff in bits and pieces and the defendant no. 1 has made a substantial contribution for the construction of the suit property.

8. The other averments made by the plaintiff with respect to the share given to defendant no. 1 in their ancestral property; the said property being sold by defendant no. 1; the proceeds by that sale being utilized by defendant no. 1 in the purchase of some other property in some other locality and the denial by the defendants of any partition in the ancestral property are not of much relevance in the present suit, since the issues in the present suit are limited to the injunction with respect to the suit property and not with respect to the ancestral property.

9. It is the plaintiff's case that the defendants were permitted to reside in the suit property out of love & affection and are mere licensees in the suit property. The plaintiff claims himself to be the allottee of the suit property for which he has proved the allotment letter Ex.PW1/1. It is submitted by the defendants that the allotment was made for the whole family and not for any individual. Once the plaintiff CS No. 59024/16 Page 4 of 6 has proved the allotment in his favour, the onus of proof for proving that the said allotment was for the whole family shifts upon defendants u/s 102 of Indian Evidence Act. The defendants in their evidence have neither produced any document to prove that the allotment was made to the entire family, nor has produced any document to prove that merely because the allotment was made in the name of plaintiff, the right of the defendants in the suit property cannot be extinguished. Apart from the bald averments made by the defendants in their WS and in their evidence with respect to the suit property being alloted to the family, no substantial proof has been produced by the defendant to discharge their onus. Moreover, the plea taken by the defendants that a substantial contribution has been made by them in the construction of the suit property cannot be considered since no averment with respect to the same has been made by them in their WS. It is a trite law that no evidence can be led beyond the pleadings of the parties. Even considering the contentions made by the defendants with respect to contribution made by them in the construction of the suit property to be true, the same is irrelevant for the adjudication of the present issues and if any contribution had been made by the defendants, a suit for recovery is the proper remedy to be availed.

10. The plaintiff is the original allottee of the suit property. Merely because out of love and affection, the plaintiff has permitted his son and daughter in law to live in the suit property, does not mean that he is under any obligation to provide shelter and accommodation to them who are source of continuous nuisance for him. The status of the plaintiff being that of the allottee of the suit property, the possession of the plaintiff over the suit property and the status of the defendants being of merely licensees stands proved.

Accordingly, both the issues are decided in favour of the plaintiff and against the defendants.

RELIEF

11. For the reasons assigned herein above, the suit of the plaintiff is decreed as under:

a) A decree of mandatory injunction is hereby passed in favour of the plaintiff and against the defendants thereby directing the defendants to restore the vacant and peaceful possession of one room situated in the back side of property bearing no. 98, Harijan Basti, Sultan Pur Majra, Delhi­41, as shown in the site plan.

b) A decree of permanent injunction is hereby passed in favour of the plaintiff and against the defendants thereby restraining the defendants from creating any third party interest in the property bearing no. 98, Harijan Basti, Sultan Pur Majra, Delhi­41.

Costs of the suit are also awarded in favour of the plaintiff. Decree sheet be prepared accordingly.

File be consigned to record room after due compliance.

                                                          MANISH        by MANISH JAIN

Announced in the open Court today.                        JAIN          Date: 2020.02.06
                                                                        04:47:54 +0530


                                                        (Manish Jain)
                                                        Civil Judge, North West
                                                        Rohini Courts, Delhi
                                                        07.02.2020




CS No. 59024/16                                                                     Page 6 of 6